We address this paradoxical question in our work-in-progress titled “Immoral Promises.” We consider this question to be a “paradoxical” one because people are generally supposed to keep their promises according to most theories of morality. In short, most philosophers think it is morally wrong to break a promise. But what about an immoral or illegal promise? Here is an excerpt from page 4 of our paper:

“Many theorists define valid promises in such a way as to exclude promises to perform immoral acts. (See, e.g., Shiffrin, 2011, p. 160: ‘I deny that immoral “promises” are true promises.’) On this view of promising, an evil or immoral promise is not morally binding or obligatory because such a promise is not really a promise in the moral sense. In particular, this line of argument focuses on whether a promisor has a moral or legal right to perform the promised act. (Ibid., pp. 159-163.) Simply put, if one does not have a right to perform X (where X is some immoral or wicked act), then a promise to do X is a defective promise.

“By the same token, David Owens (2006) proposes a similar solution to the problem of immoral promises. First, Owens reframes a promise as a transfer of authority from the promisor to the promisee. That is, according to Owens’s ‘simple theory of promising,’ whenever I make a promise to someone, what I am really doing is giving the promisee (the recipient of my promise) the authority to require me to perform my promise. This reframing thus solves the problem of immoral promises, since promisors lack ex ante the authority to perform immoral actions. In other words, if I lack the authority to do something immoral in the first place, then I also lack the authority or normative power to promise to do that very same immoral act in the future, or in the words of Owens (ibid., p. 72, n. 28): ‘Where the promisor has no authority to do the thing promised (for example, a promise to kill or maim), no grant [of authority] can be made and the promise is nugatory …’

“But is a promise really a transfer of authority (in the case of Owens) or a transfer of rights (in the case of Shiffrin)? If so, how does a promise effectuate such a transfer? We would argue that all such transfer theories of promising, including Owens’s, are unable to circumvent Hume’s famous objection. (See generally Habib, 2014.) In particular, how does the mere recital of a few (magical?) words change anything about the world?

“In any case, let us assume that either Owens’ or Shiffrin’s account of promising is the correct one. We are not out of the woods yet because such transfer theories are vulnerable to two potentially fatal flaws. First, both theories of promising are devoid of any substantive content because they do not provide any criteria for determining whether one has the legal right or the moral authority to do X in the first place. That is, although the validity of a promise under these transfer theories of promising depends on the content of one’s promise, these theories are empty; they provide no criteria for evaluating the goodness or badness of the content of promises. Such criteria are entirely external to the rights theory or authority theory.

“Furthermore, as Charles Fried (1981, pp. 96-97) points out, it is not always obvious what the relevant moral or legal baseline of the parties is. Consider the breaking bad problem anew, [which we discuss on page 2 of our paper]. Despite the best efforts of the police, there exists a thriving black market for crystal meth in New Mexico and beyond. In an ideal world, it would be best if this illegal meth market did not exist, since meth is a highly addicting and dangerous substance, but this market does exist, so if Walt and Jesse don’t meet this demand, other less scrupulous suppliers most likely will. Assuming that no one is coerced into consuming this dangerous drug, can we really say that Walt and Jesse don’t have an ex ante moral right to engage in the meth trade?”